' MIAN ABDUL KHALIQ, J.---Ahmad Khan aged 40 years, Muhammad Amin aged 25 years, Rab Nawaz aged 45 years, Allah Ditta aged 25 years and Allah Mangaya aged 35 years were tried by the learned Additional Sessions Judge, Bahawalpur under sections _302/148 and 149, P.P.C. For forming an unlawful assembly, committing rioting and in prosecution of their common object had murdered Allah Ditta deceased, and vide his judgment dated 9-10-1991 he convicted and sentenced the appellants under section 148, P.P.C. To undergo R.I. For 3 years each and a fine of Rs,5,000 each. He also awarded the appellants under section 302/149, P.P.C. Death sentence each and a fine of Rs,5,000 each. Ali the appellants were also directed to pay to the legal heirs of the deceased Rs,25,000 as compensation under section 544-A, Cr.P.C. And the same was directed to be recovered as arrears of land revenue. The appellants have filed appeal against their conviction and sentence and the murder reference has been submitted by the Trial Court for confirmation of their death sentence. The criminal appeal and the murder reference arise out of the same judgment alongwith the connected Criminal Revision No,102 of 1991/BWP filed by the brother of the deceased complainant for the award of alternate sentence in default of fine under section 148, P.P.C. All shall be dealt with together by this judgment.
2. The brief facts of the prosecution case as unfolded in F.I.R. Exh.PM recorded on 28-4-1990 at Police Station Musaferkhana, District Bahawalpur on the statement of. Allah Ditta deceased by P.W.10 Naveed Akram, S.I./S.H.O. Are that he was resident of Mauza Hakra, was a cultivator and had his land about 2 squares away from his house where he had constructed a cattleshed to keep his cattle etc. He used to sleep in the cattleshed in the evening and on the night of occurrence i,e, on 28-4-1990 as usual in the evening after fastening his cattle in the shed he slept outside the cattleshed on a wooden plank after lightening the lantern. At about 12 o'clock (night) some one pulled his quilt from him. He woke up and witnessed Allah Ditta armed with iron rod, Allah Mangaya armed with Dang, Muhammad Amin armed with iron rod, Rabnawaz armed with a Chhuri and Ahmad Khan armed with iron rod, residents of the village, were standing on four sides of cot of the deceased/complainant, who were identified in the light of the lantern. The complainant tried to get up, on which Allah Mangaya appellant inflicted a Dang blow on his left leg, who raised hue and cry, on which Ahmad Khan appellant tried to close his mouth. Meanwhile P.W.1 Abdul Aziz and P.W.2 Ghulam Muhammad, his brothers who were sleeping in the adjacent land to guard the wheat reached running and identified the appellants in the light of the lantern and while beseeching the accused/appellants tried to save the complainant, and during that Rabnawaz appellant caused three Chhuri blows one after the other on his right shin. Allah Mangaya appellant with Dang, Muhammad Amin and Ahmad Khan appellants with iron rods started injuring both shins of his legs.
P.W.1 and P.W.2 Abdul Aziz and Ghulam Muhammad caught hold of the feet of the accused/appellants, beseeched them and saved Allah Ditta deceased. Allah Mangaya, Muhammad Amin, Rabnawaz Allah Ditta and Ahmad Khan appellants after making mutual consultation had injured the complainant Allah Ditta. The motive behind the occurrence was that in the consolidation proceedings of the village some land of the appellants had been mutated in the Khata of Ghulam Farid. The appellants suspected that the Revenue Department had mutated the land at the behest of the complainant. Abdul Aziz (P.W.1), Ghulam Muhammad (P.W.2), real brothers, Syed Munawar Ali Shah, Member, District Council, and Muhammad Zaman Shah, Lamberdar of Mauza Hakra took the injured in a wagon to the police station, where on the statement of the injured/complainant Allah Ditta who was conscious, a case vide F.I.R. Exh.PM was registered by P.W.10 Naveed Ikram, S.H.O. The S.H.O. Sent the injured for medical examination. The accused were challaned and sent up for trial. A charge under sections 148, 302/149, P.P.C. Was framed against them, to which they denied and claimed trial.
3. The prosecution examined 10 P.Ws. In all to substantiate its case. P.W.1 Abdul Aziz, an eye-witness of the present occurrence stated that on the fateful night at about 12 mid-night he alongwith P.W.2 Ghulam Muhammad was present on the Dhari of the wheat crop in village Hakra. Allah Ditta deceased, his brother was sleeping near the cattleshed. He alongwith P.W.2 Ghulam Muhammad heard hue and cry and immediately rushed towards the cattleshed and witnessed appellants Rabnawaz armed with Chhuri, Allah Mangaya armed with Dang, Ahmad Khan, Allah Ditta and Muhammad Amin armed with iron bars, were inflicting injuries on the deceased Allah Ditta and within his view Rabnawaz appellant gave three Chhuri blows on the right leg of Allah Ditta. He alongwith P.W.2 beseeched the appellants for mercy, but they replied that they would teach Allah Ditta deceased a terrible lesson and would give him a horrible and torturous death. Ahmad Khan, Allah Ditta and Amin Khan appellants inflicted blows with their respective iron bars while Allah Mangaya had given Dang blows on the legs of Allah Ditta deceased. A lantern was lit near the cot of the deceased at about a distance of 1 foot. He identified the appellants in its light. Ali the appellants ran away. He alongwith P.W.2 took Allah Ditta in injured condition towards the road on the cot on which he was sleeping. Thereafter he went to the house of Munawar Shah, Member of District Council. He also went to Lamberdar Zaman Shah and both of them accompanied him to the place where the injured was lying at the roadside. After about 2/3 hours they obtained a wagon and took the deceased Allah Ditta in injured condition in the wagon to Police Station Musafirkhana.
The S.H.O. Recorded the statement of Allah Ditta deceased who was then in injured condition and in senses, and on the basis of said statement, F.I.R. Exh.PM. Was recorded. After completion of the formalities Allah Ditta was taken to the Hospital. P.W.1 alongwith P.W.2 reached the place of occurrence with the police, where P.W.2's statement was recorded. P.W.2 Ghulam Muhammad, another brother of the deceased, an eye-witness supported and corroborated the statement of P.W.1. P.W.3 Saeed Bakhsh joined the investigation of this case and in his presence, the S.H.O.
(P.W.10) took into possession blood-stained quilt P.1, a lit lantern P.2, a wooden plank P.3, cot P.4 vide memo Exh.PA attested by him. P.W.4 Ghulam Hussain witnessed the recovery of Dang P.5 at the instance of appellant Allah Mangaya which was secured by P.W.10 Naveed Ikram S.H.O. Vide memo.
Exh.PB; Allah Ditta appellant got recovered iron rod P.6 blood-stained which was taken into possession by P.W.10 vide memo Exh.PC; Rabnawaz appellant led to the recovery of iron rod in the shape of Chhuri P.7 secured by P.W.10 vide memo Exh.PD; Haji Ahmad appellant led to the recovery of iron rod P.8 secured by P.W.10 vide memo Exh.PE and Muhammad Amin appellant led to the recovery of iron rod P.9, blood stained which was obtained vide memo Exh.PF. Ali these memos were attested by him. P.W.5 Allah Wasaya had identified the dead body of the deceased. P.W.6 Ashiq Muhammad Patwari had prepared the site plans Exh.PG and PH of the place of occurrence at the instance of the police and on the pointation of the P.Ws. P.W.7. Muhammad Siddique H.C. Had escorted the dead body of the deceased to the mortuary and after postmortem examination the doctor handed him over last-worn blood-stained clothes of the deceased P.10 Chadar, P.11 Kurta which he produced before the S.H.O. (P.W.10), who secured the same vide memo PH. P.W.8 Akhtar Ali FC attested the memo Exh.PH about taking into blood-stained clothes of the deceased P.10 and P.11 by P.W.10 S.H.O. From P.W.7.
4. P.W.9 Dr. Habib Ahmad on 20-4-1990 had medically examined the deceased Allah Ditta in injured condition and had found the following injuries on his person:- (1A) There were three incised wounds on the anterior aspect of lower 1/3rd of right lower leg measuring each about 2.5 c.m. x 1.5 c.m. Muscle deep.
(1B) There was swelling and deformity of the lower half of the right leg.
(2) There was a lacerated wound of about 3 x 2 c.m. On the anterior aspect of lower leg, muscle deep and deformity of the leg was present.
(3) There was swelling of the right hand and movements were restricted.
(4) There was swelling and redness of the left forearm in the lower half posterolaterally.
(5) Multiple contusion marks on the upper half of the back.
'X-ray was advised for injuries Nos.1, 2 and 3. The injuries were also kept under observation. Injuries Nos.4 and 5 were declared simple. Injury No,1-A was caused by sharp edged weapon and the others with blunt weapon. The patient was fully conscious at the time of examination. Exh.PK is the copy of the M.L.R. And Exh.PK/1 is the injury statement. He referred the patient to the B.V. Hospital, Bahawalpur for treatment on the same day.
' On 11-5-1990 at about 10-00 a.m. He conducted autopsy on the dead body of deceased Allah Ditta and had observed the injuries as mentioned in the M.L.R. Exh.PK. He witnessed the fracture of both lower legs bones (tibia and fibula). He opined that after completing external as well as internal postmortem he was of the view that the cause of death looked to be deep venous thrombusis, which caused thromboembolism and brain anoxia. The final report was not given and treatment notes and emergency notes were not produced and the initial opinion was that this thromboembolism was caused by injuries Nos.1 and 2 which were already mentioned in M.L.C. And these injuries were sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was within about two weeks and the time between death and post-mortem within 24 hours. Exh.PL is the carbon copy of post-mortem report, and Exh.PL/1 is the pictorial diagram giving location of injuries. Inquest Report Exh.PL/2 was signed by him.
5. P.W.10 Naveed Ikram, S.H.O. On 28-4-1990 recorded the statement of Allah Ditta deceased, on the basis of which formal F.I.R. Exh.PM was registered. Allah Ditta deceased had reached the police station in injured condition. His statement was correctly recorded without any addition or omission and the same was thumb marked in token of its correctness. P.W.10 prepared injury statement Exh.PK/1 and sent the injured Allah Ditta for medical examination. Lie recorded the statements of P.Ws. Abdul Aziz and Ghulam Muhammad. He visited the spot, inspected the same and prepared rough site plan Exh.PN. He took into possession quilt P.1, a lit lantern P.2, wooden plank P.3, cot P.4 vide memo PA attested by Said Bakhsh and Ghulam Farid, P.Ws. (given up). He also recorded the statements of these witnesses. On 10-5-1990 he received information that Allah Ditta injured had died. He reached the B.V. Hospital, prepared inquest report Exh.PL/2 and sent the dead body to the mortuary. On 18-5-1990 he arrested all the appellants. On 28-5-1990 appellant Allah Mangaya while in police custody led to the recovery of Dang P.5 from his residential house secured by him vide memo Exh.PB. On the same day appellant Allah Ditta while in police custody led to the recovery of iron rod P.6 from his residential house which was lying under his cot and he secured the same vide recovery memo. Exh.PC. The same was blood-stained and it was made into a sealed parcel. On the same day, Rabnawaz appellant while in police custody led to the recovery of iron rod P.7 from his residential house, secured vide memo Exh.PD. On the same date appellant Haji Ahmed while in custody got recovered iron rod P.8 from his residential house which was secured vide memo. Exh.PE. On the same day appellant Muhammad Amin while in custody also got recovered blood-stained iron rod P.9 from his residential Kotha secured vide memo. Exh.PF. He had prepared scaled parcel of the same. The recovery memos Exhs.PB, PC, PD, PE and PF were attested by P.Ws. Ghulam Hussain (P.W.4) and Khuda Bakhsh (given up). He also recorded the statements of the P.Ws. And after completion of the investigation had challaned the appellants. Prosecution evidence against them and stated that the recoveries had been planted on them. Appellant Allah Mangaya negated the recovery of Dang P.5 and stated that he had been falsely involved in the case due to his relationship with the appellant Rabnawaz and the P.Ws. Had also deposed against him due to the aforesaid fact and also because they were related to the complainant. Appellant Rabnawaz when examined under section 342, Cr.P.C. Denied the prosecution evidence against him and also the recovery of iron rod P.7 at his instance and in answer to a question "Why this case against you and why the P.Ws. Have deposed against you?", he replied:- "Two years before/prior to this occurrence my brother Haq Nawaz was murdered by Nazim etc., relatives of the complainant party. A compromise was effected between the parties and eight Bighas of agricultural land was got transferred in the name of the heirs of Haq Nawaz deceased.
The complainant party wanted to get back the aforesaid land which was refused by us. Allah Data was injured by some unknown persons who later on died. Due to the aforesaid grudge and enmity, the complainant party involved me in this murder case to get back the aforesaid land."
' The P.Ws. Have deposed against me due to the aforesaid enmity and their relationship with complainant party."
' Appellant Allah Ditta when examined under section 342, Cr.P.C. Denied the prosecution evidence against him and also the recovery of iron rod P.6 at his instance and stated that he had been falsely involved in this case due to his relationship with the appellant Rabnawaz. He also stated that the P.Ws. Had deposed against him due to the aforesaid fact and also because they were related to the complainant. Ahmad Khan appellant when examined under section 342, Cr.P.C.
Denied the prosecution evidence against him and also recovery of iron rod P.8 at his instance and in answer to the question "Why this case against you and why the P.Ws. Have deposed against you?", he replied:--- "Two years prior to this occurrence Haq Nawaz brother of Rab Nawaz, my co-accused was murdered by Nazim etc., relatives of the complainant party and I was a prosecution witness in the said case. Due to the said reason, I have been falsely involved in this case."
' Muhammad Amin appellant denied the prosecution evidence and recovery of iron rod P.9 at his instance and had made the statement as that of Ahmad Khan appellant. He had opted to make statement under section 340(2), Cr.P.C. And had produced D.W.1 Muhammad Qasim. D.W.1 Muhammad Qasim stated that the complainant as well as the accused were related to him, who are residents of village Hakra. There was a "Tamasha of Nutts" in Mauza Hakra. P.Ws. Abdul Aziz, Ghulam Muhammad and Ghulam Hussain were also present and watched the said "Tamasha" and at about 4-00 or 5-00 a.m. Early morning a person came to the place where the Tamasha was being held and disclosed that Allah Ditta was murdered. D.W. 1 alongwith P.Ws. And others reached the place where Allah Ditta was injured and found Allah Ditta deceased lying unconscious on a cot.
They took him to the police station and after reporting the matter they took him to the Hospital.
Allah Ditta was unconscious. He died 12/13 days after the occurrence and did not regain senses during the said period. D.W. 1 stated that he made statement before the police. The culprits were not known to anyone. D.W.1 further stated that about one year prior to the occurrence, Haq Nawaz brother of Rabnawaz appellant was murdered by Nazim (son in law of Allah Ditta deceased) and thirteen others, who were challaned. However, a compromise was effected. Rabnawaz appellant was the complainant in the said case. Nazim etc. Accused gave 8 Bighas of agricultural land as a result of compromise and the accused were acquitted. Thereafter Allah Ditta deceased demanded the aforesaid 8 Bighas of land, but Rabnawaz did not return that land. Allah Ditta deceased was injured by some unknown persons and taking undue advantage of the situation P.Ws.1 and 2 had falsely implicated the appellants in the case in order to pressurise them to return the aforesaid 8 Bighas land. The appellants later on declined to make statements on oath under section 340(2), Cr.P.C.
7. We have heard the learned counsel for the parties and have perused the record. The motive behind the occurrence was stated by deceased Allah Ditta in the F.I.R. Exh.PM that in the consolidation proceedings of the village some land of the appellants was mutated in the Khata of Ghulam Farid and the appellants suspected that the deceased was instrumental in the mutation of their land from the Revenue Department in the Khata of Ghulam Farid. P.W.1 Abdul Aziz and P.W.2 Ghulam Muhammad were brothers of the deceased have not stated about the motive as stated by the deceased in the F.I.R. Exh.PM, hence it has not been proved on record.
8. F.I.R. Exh.PM contains the names of the accused/appellants, weapons carried by ,them, the part played by each of the appellants, names of the witnesses and the manner in which the occurrence took place, all are given therein. P.W.10 S.H.O. Who recorded the statements of P.Ws. As well as P.W.1 Abdul Aziz and P.W.2 Ghulam Muhammad, real brothers of the deceased who had taken the deceased in injured condition to the police station have stated that Allah Ditta deceased was in senses. P.W.9 Dr. Habib Ahmad who had medically examined the deceased in injured condition on 28-4-1990 had specifically stated that the injured was in senses when he was brought to the Hospital and at the time when P.W.9 examined him. Exh.PM is the dying declaration of the deceased.
9. The eye-witness account has been furnished on record by the statements of P.W.1 and P.W.2, who are real brothers of the deceased. The appellants are related to the deceased. They were previously known to each other and the P.Ws. Had witnessed the appellants in the light of lit lantern.
The deceased Allah Ditta in the F.I.R. Exh.PM had stated that Allah Mangaya had inflicted Dang blow on his left leg, Rabnawaz appellant also inflicted three Chhuri blows one after the other on the left shin. Muhammad Amin and Ahmad Yar appellants had given Sarya blows and Dang blow respectively on the shins of both the legs of the deceased. P.W.1 has stated that he had witnessed Rabnawaz appellant armed with a Chhuri. Allah Mangaya armed with a Dang, while Ahmed Khan, Allah Ditta and Amin Khan armed with iron bars and all of them inflicted injuries on the person of Allah Ditta and within his sight Rabnawaz inflicted 3 Chhuri blows on the right leg of Allah Ditta. He had beseeched the accused for mercy, but Allah Ditta appellant had stated that a terrible lesson would be given to the deceased, who shall meet a horrible and tortuous death. Ahmad Khan, Allah Ditta and Muhammad Amin appellants inflicted blows with their respective iron bars while Allah Mangaya dealt Dang blows on the legs of Allah Ditta deceased. P.W.2 Ghulam Muhammad had stated that on the hue and cry of the deceased he alongwith P.W.1 reached the spot and witnessed Rabnawaz appellant armed with Chhuri, Allah Mangaya with a Dang, while Allah Ditta, Muhammad Amcen and Ahmad Khan armed with iron bars inflicted injuries with their respective weapons to Allah Ditta. Rabnawaz had inflicted 2/3 Chhuri blows on the right leg of his brother Allah Ditta. The remaining accused inflicted blows on the legs of deceased Allah Ditta. He alongwith P.W.1 had beseeched the appellants to stop assault but Allah Ditta appellant had stated that they would mercilessly murder Allah Ditta deceased. P.Ws. 1 and 2 had taken the deceased in injured condition to the police station in a wagon, where formal F.I.R. Was recorded on the statement of deceased Allah Ditta.
10. The medical evidence on record has been furnished by the statements of P.W.9 Dr. Habib Ahmad who on 28-4-1990 had medically examined the deceased in injured condition and had found the injuries mentioned in M.L.R. Exh.PK. The deceased had received three incised wounds on the anterior aspect of lower 1/3rd of right lower leg, swelling and deformity of the lower half of the right leg, a lacerated wound of about 3 x 2 c.m. on the anterior aspect of lower half of left lower leg, muscle deep and deformity of the leg was present, swelling of the right hand, swelling and redness of the left forearm in the lower half posteriolaterally and multiple contusion marks on the upper half of the back. Injuries Nos.3, 4 and 5 were neither stated by the deceased/complainant nor by P.Ws. 1 and 2. The medical evidence to that extent is not in consonance with the oral evidence. Allah Mangaya appellant led to the recovery of Dang P.5 (blood-stained) which was secured by P.W.10 vide memo Exh.PB; Allah Ditta appellant led to the recovery of blood-stained iron rod P.6 from his house secured by P.W.10 vide memo Exh.PC, Rabnawaz appellant led to the recovery of iron rod in the shape of Chhuri from his house, secured vide memo Exh.PD, Haji Ahmad appellant led to the recovery of iron rod P.8 obtained by P.W.10 vide memo. Exh.PE and Muhammad Amin appellant got recovered blood-stained iron rod P.7 which was secured by P.W.10. P.W.4 had attested all the memos PB to PF. Iron rod recovered at the instance of Allah Ditta appellant and Dang at the instance of Allah Mangaya were found to be stained with human blood vide Chemical Examiner's Report Exh.PQ and that of the Serologist Exh.PR. P:W.4 Ghulam Hussain is the real brother of the deceased/complainant and his statement cannot be relied upon unless corroborated by strong evidence on record. The recoveries were effected at the instance of the accused from Basti Hakra which comprised of 300/400 houses. P.W. Khuda Bakhsh who also witnessed the recovery was not produced by the prosecution. The recoveries were effected from the houses of the appellants. The occurrence took place on 28-4-1990 and the appellants were arrested on 18-5-1990. The recoveries were effected at their instance on 28-5-1990 i,e, exactly one moth after the occurrence and on the 11th day of their arrest. It is surprising that the appellants had kept the weapons of offence in their houses for such a long period. They were arrested after 21/22 days of the occurrence. They had every opportunity to destroy the alleged recovered weapons of offence or to conceal the same at some other place. In the circumstances, we hold that the recovery aspect of the case has not been proved on record beyond doubt and the positive reports of the Chemical Examiner Exh.PQ and that of the Serologist Exh.PR in respect of Dang and iron rod of Allah Mangaya and Allah Ditta appellants are of no help to the prosecution.
11. The deceased was in senses when he lodged F.I.R. Exh.PM as stated by P.Ws. 1, 2, 10 and also P.W.9 the Doctor who had medically examined the deceased in injured condition. The deceased died after 13 days of the occurrence. No doubt F.I.R. Exh.PM is to be treated as dying declaration of the deceased and it is natural that a person who is expecting his death, shall not make false statement or implicate innocent persons, but in the instant case the deceased was in senses when he lodged F.I.R. Exh.PM in presence of P.Ws. As well as he was medically examined by P.W.9 and had died after 13 days. In the peculiar circumstances of the case we have to be on guard while accepting Exh.PM, the dying declaration as a whole truth. It is the duty of the Court to separate the chaff from the grain. In he instant case the deceased in the F.I.R. Exh.PM has specifically stated that Allah Mangaya appellant had inflicted a Dang blow on his left leg whereas Rabnawaz had given three Chhuri blows on the lower part of the left leg of the deceased and the other coaccused/appellants had also given injuries on the legs of the deceased. The Doctor had found three incised wounds on the lower 1/3rd of right lower leg, swelling and deformity of the lower half of the right leg, lacerated wounds on the anterior aspect of lower half of left lower leg, muscle deep, could be caused by the Dang carried by Allah Mangaya appellant and Chhuri (Sarya) of Rabnawaz. Neither the deceased in the F.I.R. Exh.PM nor P.Ws. 1 and 2 in their statements before the Trial Court had stated about the causing of blows on the right hand, left forearm and on the upper half of the back.
12. The defence evidence produced in the shape of D.W.1 is of no help to the defence, as no question was put to the P.Ws. During cross-examination that it was an unwitnessed occurrence and P.Ws. 1 and 2 were present with D.W.1 and others in the Tamasha of Nutts. The appellants had also not raised the same plea in their statements under section 342, Cr.P.C.
13. We have given our anxious consideration to the arguments advanced by the learned counsel on either side as well as to the evidence on record and circumstances appearing in the case. It is by now well settled that the maxim ' "Falsus in uno falsus in omnibus" has no universal application and the Court can sift the grain from the chaff and convict those accused whose guilt is established beyond any doubt and can acquit those whose involvement is not free from doubt. We, as a measure of abundant caution, acquit Ahmad Khan, Muhammad Amin and Allah Ditta appellants of the charge, who shall be released forthwith if not required in any other case. Rabnawaz and Allah Mangaya appellants' death sentence under section 302/34, P.P.C. Is altered to imprisonment for life with a fine of Rs,10,000 each, in default whereof to suffer one year R.I. Each. They shall also pay Rs,25,000 each as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C.
And in default of payment of the same they shall undergo R.I. For six months each. They shall be extended the benefit of section 382-B, Cr.P.C.
14. The death sentence is not confirmed.